As the world has just learned, the Supreme Court of the United States ruled 5-4 yesterday that “for the first time in our Nation’s history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war.” So summed up Justice Scalia in a stinging dissent in which he was joined by justices Roberts, Thomas, and Alito. Justices Kennedy, Stevens, Souter, Ginsburg, and Breyer made up the majority.

There is much that can be said about the Boumediene v. Bush decision:

How the Court was able to review the case, in light of its long-standing practice of waiting until lower federal courts have an opportunity to rule.

How the majority torturously construed the English and American constitutional history of habeas corpus.

How the majority dishonestly eviscerated its controlling precedent on habeas corpus.

How habeas corpus was never intended to apply, and never did apply, to unlawful enemy combatants captured outside the United States.

How the processes established by the political branches—Congress and the President—for handling unlawful enemy combatants more than satisfied the Constitution.

How the majority was able to invalidate the Detainee Treatment Act.

How the decision will severely compromise the military’s effectiveness in fighting terrorism.

How the judicial usurpation of presidential war-powers has now become nearly complete.

How this contra-constitutional coup has been engineered by a razor thin 5-justice majority of the Court, three of them having been appointed by Republican presidents (Stevens: Ford, Kennedy: Reagan, Souter: Bush I) and the other two by Republican bandwagoneers in the Senate (Ginsburg and Breyer).

All this and more—important as it is to our Constitution, our Nation, and our national security—will be discussed at length in the days to come, as Justice Kennedy’s majority opinion in Boumediene receives the scrutiny and obloquy that it deserves. But those discussions will have to wait, because in this election year there is a more fundamental aspect of the decision that needs to be considered.

In his dissenting opinion, Chief Justice Roberts said this about the now-unconstitutional Detainee Treatment Act (“DTA”):

"The majority rests its decision on abstract and hypothetical concerns. Step back and consider what, in the real world, Congress and the Executive have actually granted aliens captured by our Armed Forces overseas and found to be enemy combatants:

· The right to hear the bases of the charges against them, including a summary of any classified evidence.

· The ability to challenge the bases of their detention before military tribunals modeled after Geneva Convention procedures. Some 38 detainees have been released as a result of this process.

· The right, before the [Combatant Status Review Tribunals], to testify, introduce evidence, call witnesses, question those the Government calls, and secure release, if and when appropriate.

· The right to the aid of a personal representative in arranging and presenting their cases before a [Combat Status Review Tribunal].

· Before the [United States Court of Appeals for the District of Columbia Circuit], the right to employ counsel, challenge the factual record, contest the lower tribunal’s legal determinations, ensure compliance with the Constitution and laws, and secure release, if any errors below establish their entitlement to such relief."

Roberts continued, as he worked toward exposing what the Supreme Court’s majority was really up to:

"In sum, the DTA satisfies the majority’s own criteria for assessing adequacy. This statutory scheme provides the combatants held at Guantanamo greater procedural protections than have ever been afforded alleged enemy detainees—whether citizens or aliens—in our national history."

Then Roberts asked: “So who has won?”

His answer: “Not the detainees. The Court’s analysis leaves them with only the prospect of further litigation to determine the content of their new habeas right, followed by further litigation to resolve their particular cases, followed by further litigation before the [United States Court of Appeals for the District of Columbia Circuit]—where they could have started had they invoked the DTA procedure. Not Congress, whose attempt to “determine— through democratic means—how best” to balance the security of the American people with the detainees’ liberty interests . . . has been unceremoniously brushed aside. Not the Great Writ [of habeas corpus], whose majesty is hardly enhanced by its extension to a jurisdictionally quirky outpost, with no tangible benefit to anyone. Not the rule of law, unless by that is meant the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants. And certainly not the American people, who today lose a bit more control over the conduct of this Nation’s foreign policy to unelected, politically unaccountable judges.” (Emphasis added.)

If the detainees have not won, if Congress has not won, if the principle of habeas corpus has not won, if the rule of law has not won, if the American people have not won—and, one can add, if the Commander-in-Chief has not won—who has?

Earlier in his dissent Chief Justice Roberts suggested the answer, writing that the Boumediene decision is “not really about the detainees at all, but about control of federal policy regarding enemy combatants,” and that “[a]ll that today’s opinion has done is shift responsibility for those sensitive foreign policy and national security decisions from the elected branches to the Federal Judiciary.”

More specifically, in the last four words of Justice Roberts’s dissent about who has won he names names: “unelected, politically unaccountable judges.”

Justice Scalia, too, sees the decision for what it is and surely understands who has won, writing in his dissent that:

"Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspen­sion [of habeas corpus] Clause, invoking judicially brainstormed separation­-of-powers principles to establish a manipulable “func­tional” test for the extraterritorial reach of habeas corpus(and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misde­scribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragi­cally, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner."

For this constitutional and national security debacle, ultimately we have to thank not only the 5-justice majority but also justice-nominating and justice-confirming Republicans in the White House and Senate.

The Boumediene decision is thus a grave cautionary lesson about what is at stake in this presidential election: nothing less than the future of the Supreme Court for another generation, and with it the security of the United States of America.

In the last sentence of his dissent Justice Scalia writes: “The Nation will live to regret what the Court has done today.” Surely we will regret it—if the Nation lives.

Henry Mark Holzer, Professor Emeritus at BrooklynLawSchool, is a constitutional lawyer and author
most recently of The Supreme Court Opinions of Clarence Thomas, 1991-2006, A
Conservative’s
Perspective.

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